More on Nebraska and the Death Penalty

Another TPM Reader follows up on the backstory about the state’s decision to abolish the death penalty. Our correspondent from yesterday noted this as part of the story. But TPM Reader LF (anonymized initials) follows up here with more on the role of the drugs state use but are having an increasingly difficult time obtaining to end condemned prisoners lives …

I don’t think you can understand the Nebraska situation without also noting the absolute mess that is lethal injection, both as a general matter and in Nebraska specifically. You guys have run stories before about how lethal injection results have been grisly lately. A lot of that stems from evolving lethal injection protocols, which have had to change (basically for the first time since the late 1970s/early 1980s) to account for a growing number of drug shortages. Some companies have stopped producing the traditional lethal injection drugs because they are very old, not profitable, and, injections, which are notoriously difficult to make consistently with good manufacturing standards. Others simply refuse to do business with state departments of correction. There has been a ton of good, progressive work here by groups like Reprieve and the Berkeley Death Penalty Clinic.

Another part of the story is the injunction that was upheld by the D.C. Circuit in 2013, in Cook v. FDA, which blocked the states from accessing a grey market for unapproved foreign knock offs. In late 2010, several states were importing their lethal injection drugs from a “pharmacy” doing business out of the back of a driving school in West London and FDA knowingly allowed this to occur even though 21 USC 381(a)(3) says that’s illegal. Suffice it to say that even conservative DC judges were not amused.

Which brings me to Nebraska. When the district court entered its injunction, it directed FDA to try to claw back the illegal drugs from those states that had been importing unlawfully. Nebraska told FDA to pound sand, mostly because Nebraska hadn’t been purchasing from the driving school, but rather from a fellow named Chris Harris. A bit of that story is here. Harris initially sold Nebraska drugs produced by a Swiss company that he obtained under false pretenses. In 2012, the company then tried to “recall” the drug, and tried to get the Nebraska Supreme Court involved, but they and the local capital defense bar got nowhere. See here and here. But, that supply eventually expired, leaving the state without the necessary drugs.

Last week, Nebraska went back to the Harris well—he’s no longer selling the Swiss product, but rather drugs sourced from a “distributor” in India. See here. You can see that the Gov. has become personally vested in this issue as part of his campaign to keep the death penalty.